How to Apply for a Grant of Letters of Administration with the Will Annexed in NSW

Introduction

When a person dies leaving a valid will but no executor is available to apply for probate, the estate falls into partial intestacy. A beneficiary named in the will may then apply to the Supreme Court of NSW for a grant of Letters of Administration with the Will Annexed.

This grant allows the appointed administrator to collect estate assets, pay debts, and distribute the remainder according to the deceased’s wishes. This article explains the eligibility rules, documentation requirements, and application steps for beneficiaries seeking to apply for letters of administration with the will annexed.

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Understanding the Grant for Eligible Family Members

The Purpose of the Grant for Your Family

A grant of Letters of Administration with the Will Annexed is a legal document issued by the Supreme Court of NSW that allows an eligible family member to step in when a will exists but no executor is available to act. The appointed administrator then takes on responsibility for:

• Collecting assets: collecting the deceased’s estate assets.
• Paying debts: paying any outstanding debts.
• Distributing the estate: distributing what remains to the beneficiaries named in the will.

The Court issues this grant so the administrator can present it to banks, Land Registry Services, and other asset holders. These institutions rely on the grant as official proof of authority before releasing funds or property to the administrator for distribution according to the deceased’s wishes.

Comparing This Grant to Ordinary Letters of Administration

Ordinary Letters of Administration apply when a person dies without leaving a valid will — a situation known as intestacy. By contrast, Letters of Administration with the Will Annexed applies when the deceased left a valid will but the appointed executor is deceased, lacks capacity, has renounced probate, or is otherwise unwilling or unable to act. The estate is then distributed according to the will’s instructions, not the rules of intestacy.

This distinction matters for eligible family members because it determines both who has standing to apply and how the estate will ultimately be divided. A beneficiary under the will is typically the most appropriate applicant for this grant, while ordinary Letters of Administration are usually sought by the deceased’s next of kin.

Eligibility Rules for Eligible Family Members & Beneficiaries

Beneficiaries Named in the Will

A beneficiary named in the will is the most appropriate person to apply for a grant of letters of administration with the will annexed. Any person who is entitled to a share of the estate assets under the will has standing to make the application. The most common applications are made by the sole or main beneficiary, but any beneficiary may apply.

Applications made by someone who is not a beneficiary themselves “on behalf of” a beneficiary who does not want to apply will not be granted by the Court. A child of the deceased cannot apply on behalf of their surviving parent who is the sole beneficiary unless they themselves are also a beneficiary under the will.

Attorneys & Legal Guardians of Beneficiaries

A grant of letters of administration may be made to the attorney of a beneficiary if the beneficiary lives outside of NSW. The Power of Attorney must give clear authority to the attorney to make the application in the Supreme Court of NSW for letters of administration with the will annexed. The attorney becomes the applicant, and all affidavits are completed by the attorney.

A grant may also be made to:

• the legal guardian of a beneficiary who is under 18; or
• the guardian or manager of a beneficiary who, because of a mental incapacity, is unable to apply themselves.

These exceptions allow the estate administration to proceed when the named beneficiary cannot personally manage the application.

Gathering Evidence & Documentation for Your Application

Proving the Executor Cannot or Will Not Act

An applicant seeking a grant of letters of administration with the will annexed must prove why the named executor cannot or will not administer the estate. The required evidence differs depending on the reason the executor is unavailable:

• If the executor has died, a certified copy of their death certificate must be provided.
• Where the executor lacks mental capacity, a medical certificate or a Financial Management or Guardianship Order is needed.
• Should the executor decline to act, they must complete and sign UCPR Form 123, a Renunciation of Probate, which is annexed to the application.

Locating the Original Will & Codicils

The original will and any codicils must be filed with the application and will be retained by the Court. Photocopies or carbon copies are not accepted, so you must locate and submit the original documents.

A valid will must be in writing and signed by the testator and two witnesses. In addition:

• Hand-written amendments not initialled by the testator and witnesses may require an affidavit from an attesting witness.
• A codicil amends rather than replaces a will, and both documents must be read together to confirm the appointment of any executor.

Key Steps for Eligible Family Members to Apply for Letters of Administration

Publishing Your Notice of Intended Application

Before filing a summons, the applicant must publish a notice of intended application on the NSW Online Registry website. Under Section 42 of the Probate and Administration Act 1898 (NSW) (‘Probate and Administration Act‘) and Rule 3 and 4 of Part 78 of the Supreme Court Rules 1970 (NSW) (‘Supreme Court Rules‘), this must be published at least 14 days before filing.

The notice serves several purposes:

• allowing creditors to make claims against estate assets;
• giving relatives an opportunity to bring family provision claims under Chapter 3 of the Succession Act 2006 (NSW) (‘Succession Act‘); and
• alerting anyone intending to challenge the will’s validity or who may know of a later will.

The prescribed wording appears in UCPR Form 116.

Filing the Summons & Required Affidavits

Under Part 78 Rule 16 of the Supreme Court Rules, an application for a grant of letters of administration should be filed within six months from the date of death. After the 14-day notice period expires, the applicant files a Summons for Letters of Administration, an Affidavit of Applicant, and an Inventory of Property listing estate assets and liabilities.

Late applications require an explanation for the delay. The applicant may include this in the Affidavit of Applicant or lodge a separate Affidavit of Delay, using an adapted UCPR Form 40 with the reasons set out in numbered paragraphs.

Administrator Responsibilities & Estate Management for Eligible Relatives

Collecting Assets & Settling Estate Debts

The administrator appointed under a grant of letters of administration must first gather and value all estate assets, including:

• real estate;
• bank accounts;
• investments; and
• personal belongings.

The grant provides the official proof of authority banks and asset holders require before releasing funds or transferring property for estate administration.

Outstanding debts and liabilities must be settled before any distribution to beneficiaries. This includes paying mortgages, loans, taxes, and other financial obligations, which may require selling certain estate assets.

The administrator must also file the deceased’s final tax return and pay any outstanding taxes.

Distributing the Estate According to the Will

After all debts are paid, the administrator must distribute the remaining estate strictly according to the deceased’s wishes set out in the will — unlike ordinary letters of administration, where the estate is divided under the intestacy rules in Chapter 4 of the Succession Act.

The administrator acts in a role similar to an executor but derives authority from the Court order rather than the will itself. Each beneficiary receives their entitlement as directed by the will. The administrator must keep detailed records of all distributions made.

Common Application Complexities for Your Family

Applying with a Copy of the Will or an Informal Will

When the original will cannot be found but a copy exists, a beneficiary may apply for a grant of letters of administration with a copy of the will annexed. The affidavit of applicant must detail all searches made, including inquiries with:

• the deceased’s solicitors;
• banks; and
• the NSW Trustee & Guardian.

This limited grant remains effective only until the original will is found and proved.

An informal will lacking proper execution may be accepted if the Court is satisfied the deceased intended it as their last will. The summons must include a claim for a declaration under Section 8 of the Succession Act. The applicant must obtain consents from any person who would benefit under intestacy and be disadvantaged by the grant.

Handling Caveats & Contested Proceedings

A person with an interest in the estate may file a caveat, preventing the Supreme Court of NSW from issuing a grant, and if a caveat has been lodged, it is wise to seek advice from wills and estate lawyers. The caveat remains in force for six months and must be served on any known applicant. The approved form is UCPR Form 141, and a filing fee applies.

Caveats are commonly lodged to challenge a will’s validity on grounds such as:

• forgery;
• lack of capacity; or
• undue influence.

A beneficiary may apply under Part 78 Rule 71 of the Supreme Court Rules to remove a caveat where no real dispute exists. Contested proceedings for probate in solemn form, heard by a Judge, are commenced by statement of claim under Part 78 Rule 72 of the Supreme Court Rules.

Conclusion

When an executor cannot or will not administer an estate, a beneficiary named in the will can apply for a grant of letters of administration with the will annexed to manage and distribute the deceased’s assets according to their wishes. This application requires meeting strict eligibility rules, gathering specific evidence, and following the procedural steps of the Supreme Court of NSW.

Navigating these legal requirements without professional guidance can lead to delays, requisitions, or a refused grant — contact our wills and estate lawyers in NSW at LawBridge to ensure your application is handled correctly. LawBridge’s wills and estate lawyers in NSW provide the expertise you need to prepare a complete application, handle caveats, and fulfil your administrator duties with confidence.

Frequently Asked Questions